The U.S. Supreme Court left intact a board that has invalidated more than 2,000 patents, resolving constitutional issues by giving a presidentially appointed official more power to overturn the board’s decisions.
The splintered decision came in a case being closely watched by the technology industry. The court said
Writing the court’s lead opinion, Chief Justice
By saying the director has greater authority over the board’s decisions, the Supreme Court rejected arguments that only Congress could reconfigure the board to pass constitutional muster.
Many of the nation’s largest technology companies, including
Some smaller inventors said the board had become an anticompetitive tool for large companies and creates an added level of uncertainty to rights patent owners thought they had received from the agency.
The case centered on the Constitution’s appointments clause, which requires “principal officers” to be nominated by the president and confirmed by the Senate. Roberts said that, in many respects, the judges are inferior officers, “in every respect save the insulation of their decisions from review within the Executive Branch.”
The fact that the board decisions are the “last stop for review within the Executive Branch” means there is not a “transparent decision for which a politically accountable officer must take responsibility,” Roberts said. “The exercise of executive power by inferior officers must at some level be subject to the direction and supervision of an officer nominated by the President and confirmed by the Senate.”
In the case before the court,
The U.S. Court of Appeals for the Federal Circuit, the nation’s top patent court, had ruled that the way to address the constitutional issue was to strip job protections from the judges, a decision that “satisfied no one,” as Roberts said.
Arthrex asked the court to simply toss out the ruling and leave it to Congress to find a way to make the board constitutional. The Trump administration and
“That both the Federal Circuit and this Court would take so much care to ensure that administrative patent judges, appointed as inferior officers, would remain inferior officers at the end of the day suggests that perhaps they were inferior officers to begin with,” Thomas said.
“Alignments between the moneyed and the permanent bureaucracy to advance the narrow interests of the elite are as old as bureaucracy itself,” Gorsuch wrote. “Our decision today represents a very small step back in the right direction by ensuring that the people at least know who’s responsible for supervising this process -- the elected President and his designees.”
The patent office is currently being led by an acting director, Commissioner for Patents Drew Hirshfeld. President Joe Biden hasn’t yet named a permanent replacement for
The case is United States v Arthrex Inc., 19-1434.
(Updates with dissents in 12th paragraph.)
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